Internet is evolving at an accelerated pace, yet regrettably, the law is having a hard time keeping up. Originally, copyright was used as a way for governments to control the printing or “copying” of books. Since then, copyright law has been revised to include other forms of artistic expression such as photography, songs, movies, architecture, and computer software.
Essentially, copyright gives the owner control over how others use their work. Copyright infringement occurs when work is reproduced without the permission of the owner—this includes unauthorized distribution, broadcasting, translation, or the creation of any derivative form of the work.
It’s not easy to gain an understanding of copyright law and how it applies to the web, especially if you don’t have a legal background. Here are the most important factors that contribute to the ambiguity surrounding copyright on the web:
- Copyright law is not straightforward, to say the least.
- Internet is a medium through which many creative forms of expression are shared in new and innovative ways, yet there is no specific “Internet Copyright Law”.
- Copying items from the Internet is as easy as a right-click of the mouse button.
I am all for sharing knowledge and propagating innovation on the web, but it’s good to know how exactly copyright works. You might not know when you are infringing copyright, and it can never hurt to make an informed decision. It’s also useful to know your right regarding your own original work as a web designer. Here are nine myths
Myth 1: I Must Accept the Default Setting of Copyright Law
Before I dive into the myths surrounding commonly used legal implementations of copyright, please know that there are more options available. Instead of protecting your work with the default setting of copyright law in your country, you can choose to use a license that is crafted by Creative Commons. This organization wants to develop “a legal and technical infrastructure that maximizes digital creativity, sharing, and innovation”. With a Creative Commons license, you can give permission about how others use your work beforehand. A commonly used license is that work can be reproduced, as long as the original author is attributed (Attribution CC BY), for instance.
Myth 2: The Existence of an “International Copyright Law”
An “International Copyright Law” that protects your work around the globe under the same rules and regulations does not exist—each country has its own copyright laws. The majority of countries, however, have signed international and regional agreements that attempt to standardize copyrights and protect foreign works—e.g. the Berne Convention and the EU Copyright directive.
Myth 3: a Copyright That Is Not Registered, Is Not Protected
Under the Berne Convention, from the moment original work is created, copyright exists. In other words, the author or creator of a work does not need to register a copyright for their work to be protected. The work still needs need to be “fixed”, recorded or written, in a tangible form to prove ownership of work.
The same goes for unpublished work, publication is not necessary for copyright protection.
It is important to note that though registration is not required under US law, it does provide some benefits: 1) Work must be registered with the US Copyright Office before any infringement suit may be filed in a US court. 2) Copyright holders cannot claim statutory damages or attorney’s fees unless the work was registered prior to infringement, or within three months of publication.1
Myth 4: Sending a Digital Copy of the Work to Yourself Is Sufficient Proof of Ownership
Posting or emailing a copy of your work to yourself does not in itself prove ownership. There’s a lot of debate on this one on the Internet, but in my opinion, any method where only you hold the evidence of ownership does not make a strong argument in court.
Myth 5: Work That Does Not Have a Copyright Notice Is Not Copyrighted
If a country is part of the Berne Convention—which the majority of countries are—then using a copyright notice is optional. Online, adding “All right reserved” or the copyright symbol “©” to an artistic work can serve as a deterrent to those who think that everything on the Internet is copyright-free, but it is not a requirement.
Myth 6: the Website Owner Retains Copyright Ownership of the Work
This misconception is related to the term “work for hire” which is determined by the relationship between the employer and the person hired to do the work. Under the 1976 Copyright Act (PDF), if the web designer is an independent contractor, and no written agreement exists between the web designer and the owner of the website specifying that the work is made for hire, then the web designer owns the copyright to whatever he creates.
For clarity’s sake, it’s always a good idea to specify in the contract the rights the website owner has with regards to the graphics, images, source code, work up files and software provided by the web designer.
Myth 7: if I Don’t Make Money from It, There Is No Copyright Infringement
Not to be mistaken with “fair use”, an exception to the exclusive right granted by US copyright law that allows the use of work without the author’s permission when used in an academic or journalistic context.
Nonprofit or noncommercial does not necessarily mean “fair use”. One of the four factors determining whether the use of work falls under “fair use” is the effect of the use upon the potential market for or value of the copyrighted work.
In other words, if the use or publication of copyrighted work—whether it makes money or not— affects the value of the work, then it is considered a violation of the copyright law. Again, this varies from country to country.
Myth 8: Sorry, That Name Has Been Copyrighted
As some degree of skill, effort and judgement has to go into a work for it to be copyrighted, copyright does not protect names, or for that matter, slogans, titles or phrases. However, a name may be trademarked if the name is used to promote or brand goods or services.
With regards to domain names, some countries, in an attempt to prevent cyber-squatting —registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else2— have created specific anti cyber-squatting laws that go beyond the rules and regulations of trademark law.
Myth 9: If You Alter an Image, There Is No Infringement
One of the exclusive rights granted under copyright law is the right of the owner of the original work to make derivative works based on the copyrighted work. Altering an image without the consent of the owner is considered copyright infringement.
In some cases, where the modified image was altered beyond recognition, the court concluded that there was no copyright infringement. But this differs from case to case. The only way to guarantee that you are legally allowed to use an image and alter it is to contact the copyright owner and ask for permission, or purchase a license.